Healthcare providers are now required to ensure that workers either are vaccinated or obtained an exemption.
Last month, I noted that the U.S. Department of Health and Human Services (HHS) had filed appeal notices in both the 8th and 5th circuits to quash injunctions imposed by those courts.
Unsurprisingly, the cases ended up in the Supreme Court. The Court, consisting of nine fully vaccinated justices, heard oral arguments on Jan. 7 regarding both the Department of Labor and the HHS injunctions.
On Jan. 13, the Court issued decisions in both cases. The recordings, transcripts, and decisions are available on the Supreme Court’s website, but I’ll cover the highlights. In the case of the Department of Labor, the Court ruled 6-3 against the government. This means that businesses with greater than 100 employees are not subject to a vaccinate-or-test requirement (for now).
More important, for this audience, is the Centers for Medicare & Medicaid Services (CMS) case. The Court found in a 5-4 decision that the imposition of a vaccine mandate for healthcare providers is within the scope of the HHS Secretary’s authority – here’s the key part – as a condition of participation in federal health programs. As the Court stated, “we agree with the Government that the Secretary’s rule falls within the authorities that Congress has conferred upon him.” The Court continued, stating that “Congress has authorized the Secretary to impose conditions on the receipt of Medicaid and Medicare funds that the Secretary finds necessary in the interest of the health and safety of individuals who are (receiving) furnished services.” This holding is crucial, because it may be an insurmountable obstacle for future challenges to vaccination requirements.
The Court’s decision answered, at least temporarily, the question of the ability of the Secretary to impose this mandate – everywhere except Texas. That’s because Texas had separately filed suit. But on Jan. 19, a federal judge in Texas dismissed that case as well. Within one day of the decision, CMS issued guidance.
So, where exactly does that leave us? As of today, Jan. 24, the vaccine mandate is in effect for all hospitals in every state, with varying dates of compliance. The decision does not change the original compliance dates. For the states covered by the Court’s Jan. 13 decision, the relevant dates are Feb. 14 and March 15, according to a Joint Commission statement. For Texas, the dates are likely Feb. 19 and March 20.
The Joint Commission has already announced that on Jan. 27, it will begin assessing compliance as a component of its survey process. One-hundred percent compliance with the regulation is required. Thus, employees must be vaccinated or be covered by a recognized exemption. There are only two good-faith efforts considered in determining the level of deficiency:
- Limited access to vaccine; or
- Evidence of aggressive steps to have all staff vaccinated.
The Joint Commission will also expect very specific documentation related to vaccination, including:
- A list of all staff and vaccination status;
- Vaccination rates, excluding exempted staff, and methods of tracking vaccination and exemptions; and
- Policies regarding vaccination.
This not going to get any less complicated, and the stakes are very high for hospitals.